Milton Leo Mallory v. United States , 259 F.2d 796 ( 1958 )

PRETTYMAN, Circuit Judge,

Mallory wag indicted> tried by j and convicted a charge of carnal knowledge of an eight-year-old girl. He wag gentenced to serve two to geven , .mprisonment. He appealed and ,, £il , , ,, ,, n. then filed a motion to remand to the Dis- ^ Court for consideration under Mallory v. United states.¹ Tbe matter ig be. fore us now on that motion.² At the trial of our present appellant, Milton Leo Mallory, certain confessions were admitted in evidence. His point now is that the receipt of those statements was error.

„ , The offense allegedly occurred somewhere around seven or seven-thirty on Thanksgiving night, 1956. The child immediately reported the affair to her mother, who called ^ the police. Officers responded to a radio call at 7:53 p. m. They found Mallory in the neighborhood and a^er a brief inquiry sent him by car P°^ce headquarters. Mallory testified he had drunk a fifth of wine that after‘ noon and was “Pretty hi«h” The P°lice testified he was incoherent. Officers searched the room where the child said the offense took place, finding there a cigarette lighter which was later identi**ed by Mallory as belonging to him. The police sent the child to a hospital, where she was examined. At headquarters a line-up sheet and a prisoner interview sheet were prepared, and appellant was questioned about the offense and asked about the lighter. He was given tests for the presence of blood on his private parts. Mallory indicated in his testimony that the questions that night were . . , TT , . , , . few m number. He denied any part m ,, TT ,, , . f, „ the crime. He was then put m the cell ,, , t at • ¿ t. j block, and nothing further happened un- ... . a A 1 A • , I , AT til morning. At about nine o clock the next morning a police officer questioned Mallory, and he admitted guilt. This questioning lasted only five or ten minutes, according to the officers’ testimony, Mallory testified that the officers simply told him the child had been checked at the hospital and he might as well say he did it; that they “would go easy on” him if he said he did it. The officers testified that no promises were made. Both Mallory and the officers testified that he was told he did not have to make a statement unless he wanted to and that the statement would be used either for or against him depending upon what the statement was. The statement was typed, read back to Mallory, and signed by him. During this time the complaining child, her mother, her grandmother, and Mai-lory’s common-law wife were brought in, and the child recited her story of^ what had happened. Mallory admitted, in the presence of these people,^ that he had had intercourse with the child. He was arraigned sometime before noon.

Mallory’s version of the matter, in his written statement and in his verbal statement before the police, the complainant, her mother, et al., was that the child had proffered intercourse for a small sum of money and that if he had not been drinking he probably would not have done it. At the trial Mallory denied any and all relations whatever with the child; he said he had been drinking and fell asleep. The written statement was introduced at the trial as an exhibit, and the mother, the grandmother, and the officers testified to the oral statements.

We think the confessions were admissible. There is no evidence of prolonged or intensive questioning. Mallory agrees he was “pretty high” on wine when he was arrested and that the questioning that night was cursory. He agrees that the next morning the officers simply told him the child had been checked at a hospital and he might as well admit the act, and that he at once admitted it. He agrees that he made the recitation to the group of women. There seems to us to have been no unnecessary delay in arraignment. The arrest was made somewhere around eight o’clock in the evening on a holiday. The arrested man was drunk, or nearly so. He was arrested on a small child’s story, and even though the hour was late the officers checked her story by medical examination. Anyone familiar with hospital procedure knows these things take time,

The only way we see to find unnecessary delay in this case would be to bold (i) that the half-drunken man should have been forthwith arraigned, even though he could not have pleaded intelligently, or (2) that the child’s story should not have been checked, or (3) that Mallory must have been arraigned at midnight. Even then, such a holding would have to be made in the face of the facts (a) that no prolonged questioning took place at any time and (b) that Mal_ jory was Warned before he signed a statement. We think neither the decision of fbe Supreme Court in the Mallory case, supra, nor any authority requires or justifies a finding of error in this matter. The motion to remand is denied and the order to show cause dissolved,

1 . 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).

2 . This court issued a rule to show cause why the judgment should not be vacated. An answer to the rule was filed by the United States.